Commercial Bank v. Brinkerhoff

85 S.W. 121, 110 Mo. App. 429, 1905 Mo. App. LEXIS 54

• Court: Missouri Court of Appeals
• Decided: February 7, 1905
• Status: Published

Opinion

BLAND, P. J.

(after stating the facts). — 1. I do not think the refusal of the court to reopen the case and hear additional evidence offered by defendant, on the day following the one the case was tried and submitted and the court’s findings made and filed, was error. The witness (defendant) testified on the trial and disclosed that he knew the facts, and all the facts, that he would have testified to, had the case been reopened, and the record shows that he would have testified to them when on the witness stand had not his own attorney declined to bring them out. In these circumstances, we think the trial court exercised a wise discretion in refusing to reopen the ease for the purpose of hearing the proffered evidence.

. 2. The principal contention of the appellant is that error was committed in overruling his motion for new trial, that the newly-discovered evidence clearly entitled him to a new trial and, if true, would have entitled him to the verdict. I think it is fairly shown that the defendant was not guilty of laches in failing to discover this evidence before the trial. Hibler, though originally a party to the suit, was not a party when the case was tried. By bankruptcy proceedings Hibler had been relieved from his liability on the note and was not personally interested in the defense made by the defendant, and for this reason, perhaps, did not disclose this evidence to defendant until after judgment had bee'll rendered. At any rate, defendant swore he knew nothing about it until after the trial, and there is nothing in the record to show that he should have made inquiry in respect to this particular evidence. The respondent, however, contends that the newly-discovered evidence, if true, furnishes no ground of defense, for the reason the affidavits do not show that the bank, if it did extend the time of payment of the note, extended it for any definite time, and if the extension was not for a definite time, the extension, though expressly-agreed to for a good consideration, would not relieve the sureties on the note.

In volume 27, at page 505 (2 Ed.), Am. and Eng. Ency. of Law, it is said: “An extension between the creditor and principal that will discharge the surety must be an extension for a fixed and definite period of time,” citing in support Vary v. Norton, 6 Fed. Rep. 808, and cases from the States of Arkansas, Georgia, Illinois, Indiana, Maryland, Mississippi, New York, North Carolina, North Dakota, Oregon, Ohio, Tennessee and Texas.

In Rucker v. Robinson, 38 Mo. l, c. 158, it is said: ‘ ‘ The agreement must not only be upon a sufficient consideration, but it must amount in law to an estoppel on the creditor, sufficient to prevent him from bringing an action before the expiration of the extended time. . . . The agreement extending the time must not only be valid and binding in law, but the time of the extension must be precisely and definitely fixed.”

In Headlee v. Jones, 43 Mo. l. c. 237, citing Rucker v. Robinson, supra, it is said: “The agreement must not only be founded upon a sufficient consideration, but it must operate as an estoppel on the creditor sufficient to prevent him from bringing an action before the expiration of the extended time.” The same doctrine is held in Owings v. McKenzie, 133 Mo. 323, 33 S. W. 802, and in Noll v. Oberhellman, 20 Mo. App. l. c. 341.

In Donovan Real Estate Co. v. Clark, 84 Mo. App. l. c. 167, this court said: “It is well-settled law that the extension of-time for payment of a promissory note, without the consent of the surety to have the effect to release him, must be upon a consideration ‘creating a valid and enforcible obligation against the creditor with respect to the enforcement of his claim against the principal debtor. ’ ’ ’

In Barrett v. Davis, 104 Mo. l. c. 558, 16 S, W. 377, it is said: “Where the creditor makes a contract with the debtor for an extension of time, whereby the former’s right to enforce an existing liability is stayed for any definite period, without. the consent of the surety,” the surety is discharged.

In Johnson v. Franklin Bank, 173 Mo. 171, 73 S. W. 191, cited and relied upon by the appellant, it was held that “when time is given to the principal debtor by a valid agreement which ties up the hands of a creditor, though it be for only a single day, the surety is discharged.”

That an agreement by the creditor with the principal debtor to extend the time of payment, to effect the release of the surety, must be for a definite and certain time, I think is the unquestioned law. A mere promise of indulgence, though upon sufficient consideration, if for no certain time, does not tie up the hands of the creditor for a day or for any time whatever, and for this reason does not release the surety. The evidence set forth in the affidavit, in support of the motion for a new trial fails to state that the plaintiff agreed to extend the time of payment for a day or for any period of time whatever, and for this reason was insufficient to make out the defense that the defendant was released of his obligation as surety on the note.

Discovering no reversible error in the record, the judgment is affirmed.

All concur.